Cohen v Cohen and Another (4383/02) [2002] ZAWCHC 45; [2002] 4 All SA 21 (C); 2003 (1) SA 103 (C) (26 August 2002)

Cohen v Cohen and Another (4383/02) [2002] ZAWCHC 45; [2002] 4 All SA 21 (C); 2003 (1) SA 103 (C) (26 August 2002)

The court found that the respondent had persistently instituted legal proceedings against the applicant over a period of more than six years, with at least nine separate processes, most aimed at discharging his maintenance obligations. The frequency and timing of these applications demonstrated persistence. The respondent's success rate was minimal, and his conduct, including launching new applications while appeals were pending and failing to provide credible evidence of changed circumstances, indicated that the proceedings were instituted without reasonable ground. The respondent's behaviour amounted to an abuse of the process of the court, causing the applicant significant financial...

Citation
[2002] ZAWCHC 45
Parties
Applicant: Brenda Cohen; Respondent: Roy Selwyn Cohen; Respondent: The Magistrate, Maintenance Court Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
26 August 2002
Case Number
4383/02
Procedural Posture
Urgent Application / Application for Order Under Vexatious Proceedings Act
Outcome
Application granted. Order issued restraining the respondent from instituting further proceedings against the applicant without leave of court, except for the pending appeal. Costs awarded against the respondent on attorney and client scale.
Judges
Griesel
Legal Topics
Vexatious Litigation, Maintenance Orders, Dum Casta Clause, Costs Award
Civil Procedure Family and Children Vexatious Litigation Maintenance Orders Dum Casta Clause Costs Award

Case Brief

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Parties

Brenda Cohen

Applicant

Roy Selwyn Cohen

Respondent

The Magistrate, Maintenance Court Cape Town

Respondent

Procedural Posture

Urgent Application / Application for Order Under Vexatious Proceedings Act

Legal Issues

  1. 1 Whether the respondent has persistently and without reasonable ground instituted legal proceedings against the applicant.
  2. 2 Whether the applicant is entitled to an order under section 2(1)(b) of the Vexatious Proceedings Act 3 of 1956.
  3. 3 Whether the respondent's conduct amounts to an abuse of the process of the court.

Ratio Decidendi

The court found that the respondent had persistently instituted legal proceedings against the applicant over a period of more than six years, with at least nine separate processes, most aimed at discharging his maintenance obligations. The frequency and timing of these applications demonstrated persistence. The respondent's success rate was minimal, and his conduct, including launching new applications while appeals were pending and failing to provide credible evidence of changed circumstances, indicated that the proceedings were instituted without reasonable ground. The respondent's behaviour amounted to an abuse of the process of the court, causing the applicant significant financial...

Court Disposition

Application granted. Order issued restraining the respondent from instituting further proceedings against the applicant without leave of court, except for the pending appeal. Costs awarded against the respondent on attorney and client scale.

Orders

  • It is ordered in terms of section 2(1)(b) of Act 3 of 1956 that, save for prosecuting the appeal to the Supreme Court of Appeal under Case No 010/2002 (and thereafter, if necessary, the action under CPD Case No 257/2000), no legal proceedings shall be instituted by the first respondent against the applicant in any...
  • It is recorded that the first respondent has withdrawn the proceedings instituted by him against the applicant in the Maintenance Court in Cape Town under Case No 01/816/95.